Why is Hosni Mubarak clinging to power? Maybe because the
life of an exiled dictator isn't what it used to be.

By Scott HortonScott Horton, an attorney and lecturer at Columbia Law
School, has advised sovereigns on the pursuit of kleptocratic predecessors. He
is also a contributing editor at Harper's Magazine.

February 2, 2011

Time was when a dictator like Egypt’s Hosni Mubarak, watching his hold on power crumbling in the face of an uprising, had plenty of retirement options. Odds were he could find a quiet life in one of Europe’s posher watering holes: Mougins in the hills above Cannes, on the shores of Lake Geneva, or maybe a smart Belgravia townhouse. He generally had plenty of cash parked outside the country and often would take a last dip in the treasury on the way out the door. To be sure, he had to keep his wits about him to avoid anarchists and assassins, and he had to avoid too much obvious meddling in his homeland’s politics lest this jeopardize his host’s grant of asylum. But he could usually look forward to a peaceful and comfortable run for his waning days.

So why is Mubarak trying to squeeze a few more months out of his three-decade career in office and avowing his intentions to stay in Egypt rather than packing for the Riviera? It may be because exile isn’t what it used to be; over the last 30 years, things have gotten increasingly difficult for dictators in flight. Successor regimes launch criminal probes; major efforts are mounted to identify assets that may have been stripped or looted by the autocrat, or more commonly, members of his immediate family. I witnessed this process myself, twice being asked by newly installed governments in Central Eurasia to advise them on asset recovery measures focusing on the deposed former leader and his family.

More menacingly, human rights lawyers and international prosecutors may take a close look at the tools the deposed dictator used to stay in power: Did he torture? Did he authorize the shooting of adversaries? Did he cause his enemies to “disappear”? Was there a mass crackdown that resulted in dozens or hundreds of deaths? A trip to The Hague or another tribunal might be in his future. Slobodan Milosevic, who died while on trial there, and Charles Taylor, whose prosecution there is expected to wind up later this month, furnish examples that any decamping dictator would need to keep in mind.

The dictator may well proclaim his altruistic, patriotic motives, tout his service to the country, and insist on his intention to die on his native soil, as Mubarak did in his rambling non-concession speech on Feb. 1. But more likely than not, a frantic effort is under way behind the scenes to ensure that, if he leaves, he will not face the nightmare of criminal probes and battles over assets. A friendly government offering sanctuary may quickly conclude in the face of such a barrage that its old friend just isn’t worth the effort and the damage to reputation associated with sheltering him.

There’s no doubt that the endgame for Mubarak involves many of these concerns and backroom machinations. So, how can Mubarak protect himself if he eventually makes an escape from Cairo? He’s taking the usual steps now. Start with his decision to install foreign intelligence chief and CIA confidant Omar Suleiman as vice president and constitutional successor. (Mubarak himself came to the presidency through this route; he had been Anwar Sadat’s vice president.) This comes close to matching what in the Russian-speaking world is known as the “Putin option,” a reference to the exit strategy adopted by a teetering Boris Yeltsin: Fearing possible retribution from opposition figures, Yeltsin opted to surrender power through a transitional period to a wily senior player in the intelligence community. In exchange, Yeltsin is said to have extracted a firm commitment from Putin that the full machinery of the Russian state would be mustered to protect him. There would be no criminal probes or inquiries, and no cooperation with foreigners who undertook the same. Yeltsin would be free to live his final days shuttling between Moscow and the French Riviera. Putin scrupulously kept his end of the bargain.

Suleiman, a close and loyal advisor to Mubarak, had of course long been expected to emerge as vice president, but his assumption of the office had been blocked by his bitter rival, Defense Minister Mohamed Hussein Tantawi. With the forces of opposition swirling out of control, appointing a successor who was both credible and capable of protecting Mubarak in exile was a priority move, and identifying someone with the tightest possible connections both to the United States and Israel was doubtless an added advantage.

This is not to say that such a maneuver is always successful, as Tunisia’s Zine el-Abidine Ben Ali already discovered. When Ben Ali fled to Jeddah, Saudi Arabia, he left his trusted prime minister, Mohamed Ghannouchi, in control. But Ghannouchi’s presidency lasted barely a day before power passed to more hostile hands. Within two weeks, the new Tunisian government had issued warrants against Ben Ali. The European Union — acting on Tunis’s request — froze his bank accounts, and even Interpol requested his apprehension and extradition.

This is now standard practice for dealing with an ousted leader whose escape plans don’t work out quite as neatly as hoped. When the old regime falls and opposition figures come to the fore, they will consult lawyers who invariably recommend a series of procedures. Domestic criminal inquiries are launched into corruption and theft involving the old leader and his family, with a hard focus on hard cash. Did they loot state assets or leverage their position with the government to seize commercial opportunities? A quick check of bank transfers in the last desperate days of the regime is organized, and forensic investigators are put on the trail of the cash.

Quick letters go out: to the U.S. government, requesting the assistance of the FBI in a probe of the old dictator’s thievery; to Britain, asking Scotland Yard’s help in the same sort of investigation; to Swiss authorities; and to other jurisdictions that appear in the internal investigation whenever evidence surfaces of banking activities. (These days Latvia, Dubai, the Cayman Islands, and various other island jurisdictions figure prominently in such probes.) Sometimes the efforts strike instant paydirt, as when a Swiss court froze the assets of former Zairian dictator Mobutu Sese Seko and a U.S. court arrested the holdings of Filipino dictator Ferdinand Marcos.

These letters are always accompanied with a request that the state use its power to identify and freeze any bank accounts or investments associated with the deposed leader, to be held pending further development and proof of claims. One of the major game changes comes on this point: A generation ago, such requests usuallygot a polite brush off. Today, more often than not, the government on the receiving end is delighted to comply. Some argue that this is the result of stronger international cooperation in efforts to combat money laundering; the more cynically minded, however, point out that banks themselves are generally delighted about a freeze, since it leaves them managing the money, often for a decade or longer, as litigants battle over who really owns it.

Once assets are identified, a litigation strategy is formed. The hub for such activities is now well established: the Royal Courts of Justice in London. Because London plays a central role in global finance and because English courts pioneered the concept of a global freezing order (known as a “Mareva injunction” or simply a “Mareva”), English lawyers have been center stage in such struggles for more than a decade. Getting such a freezing order, enough to clip the financial wings of the fleeing dictator, is usually the first step of litigation; actually seeing the case through to the end is a more difficult proposition. Doing so may be too expensive a burden for a poor country to bear, but a patient and tenacious prosecution is often rewarded.

Then there’s the criminal side of the ledger: a more perilous matter, especially to the dictator with blood on his hands. The days when head-of-state immunity was a show-stopper are now long past. Sixty-nine current and former heads of state have been successfully prosecuted for international crimes since 1990, and the trend has been moving steadily towards more prosecutions. The turning point came in Latin America, where courts and prosecutors gradually overcame the grants of amnesty and statutes of limitation that had previously hamstrung investigations into the brutal regimes of the 1970s and 1980s, essentially arguing that no legal immunity could be granted for certain gross human rights violations. Mubarak’s regime, with its well-documented record of torture and brutal methods of repression, is a prime candidate. His government provided a key spoke in the CIA’s extraordinary renditions program, which squarely falls within the international crime of “disappearing” — a program that was run, incidentally, by Omar Suleiman.

Mubarak might cut his losses by avoiding a bloody exit from office (though the escalating violence in Cairo suggests that may not be an option), but the past may come back to haunt him. Consider the cautionary tale of deposed Chadian dictator Hissène Habré. Human rights investigators documented thousands of politically motivated murders and instances of torture carried out by his regime, and Habré was ultimately indicted in Belgian courts using universal jurisdiction concepts. He secured asylum in Senegal after he was toppled, but the Senegalese were forced to place him under house arrest and are now coping with aggressive efforts to have him extradited to stand trial. Sudanese President Omar Hassan al-Bashir also faces an indictment, and Uzbekistan’s Islam Karimov is widely expected to face prosecution efforts if his grip on power loosens.

If Mubarak leaves, he will need a safe haven: a government that will protect him from lawsuits and criminal charges. It is increasingly difficult for any Western state to make such promises. And that leaves him with few and generally unappealing exit options. He may find a welcome in Saudi Arabia or under the roof of an equally unstable dictator in the region. But his troubles are not likely to end when the wheels go up on his jet from Cairo.

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